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The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz

Journal of Legal Education

No abstract provided.

Teaching Fiction?: The Wire As A Pedagological Tool In The Examination Of Punishment Theory, Kristin Henning

Journal of Legal Education

No abstract provided.

Is There A Remedy For The Irrelevance Of Academic Criminal Law?, Franklin E. Zimring

Journal of Legal Education

No abstract provided.

The Experiential Sabbatical, Martin H. Pritikin

Journal of Legal Education

No abstract provided.

Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger A. Fairfax Jr.

Journal of Legal Education

No abstract provided.

Teaching Scholarship Through A Seminar On The Wire, Josephine Ross

Journal of Legal Education

No abstract provided.

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

"Stand Your Ground" In Context: Race, Gender, And Politics, Donna Coker

University of Miami Law Review

No abstract provided.

Abstract Risk And The Politics Of The Criminal Law, Brenner M. Fissell

Faculty Publications

Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk. Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk. What these defenses implicitly assume, though, is that the entity the individual must …

The System Of Modern Criminal Conspiracy, Steven R. Morrison

Catholic University Law Review

No abstract provided.

The Expanding Use Of Genetic And Psychological Evidence: Finding Coherence In The Criminal Law? , Michael Vitiello

Nevada Law Journal

No abstract provided.

The Punishment Should Fit The Crime—Not The Prior Convictions Of The Person That Committed The Crime: An Argument For Less Impact Being Accorded To Previous Convictions, Mirko Bagaric

San Diego Law Review

The seriousness of the offense is the main consideration that should determine the severity of criminal punishment. This cardinal sentencing principle is undermined by the reality that often the criminal history of the offender is the most decisive sentencing consideration. Recidivists are frequently sent to imprisonment for long periods for crimes, which, when committed by first-time offenders, are dealt with by a bond, probation, or a fine. This makes sentencing more about an individual’s profile than the harm caused by the offender and has contributed to a large increase in prison numbers. Intuitively, it feels right to punish repeat offenders …

Yes, We Were Wrong;No, We Will Not Make It Right: The Seventh Circuit Denies Post-Conviction Relief From An Undisputed Sentencing Error Because It Occurred In The Post- Booker, Advisory Guidelines Era, Gregory S. Dierdorf

Seventh Circuit Review

Federal courts disfavor granting collateral relief from final criminal judgments. This mentality is premised on a need for finality in the criminal process; the idea that, at some point, a criminal case must come to an end. Post-conviction relief is available, however, where an error in the trial court causes a miscarriage of justice that must be remedied to preserve the integrity of the criminal justice system.

For example, the Seventh Circuit has granted post-conviction relief where the sentencing court miscalculated the defendant's prison sentence by misapplying the career offender-sentencing enhancement under the then-binding Federal Sentencing Guidelines. However, the court …

Don't Break The Safety Valve's Heart: How The Seventh Circuit Superimposes Substantial Assistance On The Mandatory Minimum Safety Valve's Complete Truthful Disclosure Requirement, Adrienne N. Kitchen

Seventh Circuit Review

Congress passed the safety valve to mitigate the disparate and often harsh sentences mandatory minimums impose on low-level drug defendants. But judicial interpretation continues to impose disparate sentences. In 2014, in United States v. Acevedo-Fitz, the Seventh Circuit reaffirmed its position in an ongoing circuit split regarding the safety valve. The safety valve requires defendants to meet five criteria, the fifth—sometimes called the heart of the safety valve—requires defendants provide complete truthful disclosure to prosecutors prior to sentencing. Judges interpret this requirement as imposing a burden on defendants to prove they met all five criteria without requiring the government …

Copyright Infringement And The Separated Powers Of Moral Entrepreneurship, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

This Article examines the copyright industries’ “moral entrepreneurs,” sociologist Howard Becker’s term for enterprising crusaders who seek to change existing social norms regarding particular conduct. Becker’s conception of moral entrepreneurship consists of two groups performing separate tasks: rule creators work to translate their preferred norms into legal prohibitions, and then a separate class of enforcers administer those prohibitions. In a limited sense, U.S. copyright law hews to this scheme. Legislation such as the No Electronic Theft Act of 1997 and the Artists’ Rights and Theft Prevention Act of 2005 has assigned the federal government an increasing role in defining intellectual-property …

Empirical Desert And Preventive Justice: A Comment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This essay is a response to an article by Paul Robinson, Joshua Barton, and Matthew Lister in this issue of New Criminal Law Review that criticizes an article I authored with Lauren Brinkley-Rubinstein entitled Putting Desert in Its Place, which was itself an analysis of several works published by Robinson and various coauthors making the case for "empirical desert." Robinson's suggestion that utility can be optimized by a focus on desert as it is viewed by the average citizen opens up a new line of inquiry that could lead to a better appreciation of the influence desert should have on …

When Women Kill Newborns: The Rhetoric Of Vulnerability, Susan Ayres

Faculty Scholarship

This chapter explores feminist jurisprudence regarding women who commit acts of violence, focusing specifically on questions of agency in neonaticide (killing a newborn). A case study approach illustrates the debate in feminist theory between same-treatment and different-treatment of women as compared to men. While some feminist criminologists urge that women who kill must be viewed the same as men (as having agency and responsibility), other feminists question this approach and point out that women who commit crimes that intersect with family law receive disproportionately harsh treatment and should be treated differently than men.

This chapter contends that the paradox raised …

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Faculty Scholarship

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …

You Can't Handle The Truth! Trial Juries And Credibility, Renée M. Hutchins

Faculty Scholarship

Every now and again, we get a look, usually no more than a glimpse, at how the justice system really works. What we see—before the sanitizing curtain is drawn abruptly down—is a process full of human fallibility and error, sometimes noble, more often unfair, rarely evil but frequently unequal.

The central question, vital to our adjudicative model, is: How well can we expect a jury to determine credibility through the ordinary adversary processes of live testimony and vigorous impeachment? The answer, from all I have been able to see is: not very well.

Democracy Enhancement In Criminal Law And Procedure, Janet Moore

Faculty Articles and Other Publications

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism and deterrence by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments in movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Parts III and IV turn that theoretical lens …

Interactions Between African Americans And Police Officers: How Cultural Stereotypes Create A Wrongful Conviction Pipeline For African Americans, Cynthia J. Najdowski

Psychology Faculty Scholarship

Erroneous convictions are not as rare as one might expect and when they occur, the wrongfully accused are more often African American than White: Of those who were wrongfully convicted and later exonerated in the last quarter century, 47% were African American (The National Registry of Exonerations, 2013), even though only 13% of the U.S. population is (Rastogi, Johnson, Hoeffel, & Drewery, 2011). Yet Gould, Carrano, Leo, and Young’s (2013) recent analysis of miscarriages of justice indicated that race does not reliably differentiate between cases in which innocent defendants are wrongfully convicted as opposed to rightfully acquitted. They suggested that, …

Diminished Returns: The Exorbitance Of Collecting Dna From All Arrestees, Carlos Jordi

St. Thomas Law Review

This comment will examine the effects of a criminal justice system where DNA is collected from everyone who is arrested, regardless of the seriousness of the charge. Part L.A will begin with an analysis of King to provide an understanding of how the Supreme Court decision may permit states to collect DNA from all arrestees. DNA is used in the criminal justice system because of its ability to effectively identify people. Part I.B discusses DNA science and provides a cursory understanding of how information is gathered from an individual's genetic code. Part I.C displays how law enforcement uses DNA for …

International Criminal Law For Retributivists, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing …

Public Opinion And The Abolition Or Retention Of The Death Penalty Why Is The United States Different?, Sara Sun Beale

Faculty Scholarship

What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the whole story. …

Kentucky Criminal Law Experts Call For Reform, Cortney E. Lollar

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Cortney Lollar discusses the Second Annual Forum on Criminal Law in the Commonwealth of Kentucky.

Dead Law Walking: The Surprising Tenacity Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This Article takes a statistical look at the state of federal sentencing roughly a decade after United States v. Booker, 543 U.S. 220 (2005), in which the U.S. Supreme Court declared the Federal Sentencing Guidelines constitutionally dead, and in its next breath resurrected them in advisory form. The Booker transformation has engendered endless procedural wrangles and has unquestionably altered thousands of individual sentencing outcomes. Yet, from the points of view of federal defendants in the mass and of the system that processes them from arrest to prison gate, perhaps the most surprising fact about Booker is how small an effect …

Criminalization Of Polygamy In Canada: Historical, Legal And Sociological Analysis, Washi Ahmed

Osgoode Legal Studies Research Paper Series

The Canadian Criminal Code criminalizes the act of polygamy pursuant to s.290, and bigamy (another act which is similar to polygamy) pursuant to s.293 under the assumption that such practices have an adverse impact on women and children. However, the history of the criminalization of polygamy in Canada suggests that it was enacted deliberately to marginalize a particular minority group. This paper is divided into four chapters. Chapter I discusses the historical background of polygamy and indicates that the criminalization of polygamy in Canada was an adoption of the American legal approach to Mormonism. Chapter II analyzes the provisions of …

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise On Crimes and Punishments (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophes, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics — these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions …

“White Collar” Crimes, Samuel W. Buell

Faculty Scholarship

In addition to serving as a précis of the subject of ‘white collar’ crime, this chapter does three things. First, it deals with white collar crime’s longstanding definitional problem, rejecting several standard approaches and arguing that the category is most usefully understood according to the conceptual legal problem these offenses generate. White collar crimes, much more than other offenses, are committed in social settings in which undesirable behaviors are embedded within socially welcome conduct. Thus they are difficult to set apart and extract through clearly specified ex ante rules of law. Second, the chapter illustrates this definitional claim, and discusses …